St. Louis & S. F. R. Co. v. Jones
Citation | 1920 OK 200,78 Okla. 204,190 P. 385 |
Decision Date | 04 May 1920 |
Docket Number | Case Number: 10671 |
Parties | ST. LOUIS & S. F. R. CO. v. JONES. |
Court | Supreme Court of Oklahoma |
¶0 1. Negligence--Elements of Actionable Negligence.
To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff proximately resulting from such failure.
2. Same--Evidence--Question for Jury.
Where the evidence on the primary negligence of the defendant is such that reasonable and intelligent men might differ as to the facts and inferences to be drawn therefrom, the case is one for the jury.
3. Railroads--Duty to Watch for Persons on Track--Liability for Injuries.
It is a sound and wholesome rule of law, humane and conservative of human life, that, without regard to the question whether the person who was killed or injured in the particular case was or was not a trespasser or a bare licensee upon the track of the railway company, the company is bound to exercise special care and watchfulness at any point upon its track where people may be expected upon the track in considerable numbers, as where the roadbed is constantly used by pedestrians. At such places the railway company is bound to anticipate the presence of persons upon the track, to keep a reasonable lookout for them, to give warning signals, such as will apprise them of the danger of an approaching train, to moderate the speed of its train so as to enable them to escape injury; and a failure of duty in this respect will make the railway company liable to any person thereby injured, subject, of course, to the qualification that his contributory negligence may bar a recovery.
4. Negligence -- Contributory Negligence -- Question for Jury.
Under art. 23, sec. 6, of the State Constitution, the defense of contributory negligence is at all times a question of fact for the jury, and the court should not instruct the jury that a certain fact or circumstance or a given state of facts or circumstances do or do not constitute contributory negligence
5. Railroads--Action for Injuries to Person on Track--Instructions.
Instructions examined, and found that no material or prejudicial error has been committed therein.
Error from District Court, Oklahoma County; John W. Hayson, Judge.
Action for personal injuries by Aaron Jones against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
W. F. Evans, R. A. Kleinschmidt, and Fred E Suits, for plaintiff in error.
Twyford & Smith, for defendant in error.
¶1 This suit was commenced by the defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred to as defendant, in the district court of Oklahoma county, on January 16,1918, for the recovery of damages in the sum of $ 3,000; and upon a trial thereof to the court and jury resulted in a verdict in favor of the plaintiff in the sum of $ 1,500. The defendant filed a timely motion for a new trial, which was overruled by the court and a judgment rendered upon the verdict of the jury, to reverse which this proceeding in error was regularly commenced in this court by petition in error filed by the plaintiff in error on June 9, 1919, with case-made attached. The assignments of error are:
¶2 Counsel for defendant in error discuss in their brief the first four assignments of error, wherein they say:
"These assignments of error present the questions (1) of the sufficiency of the plaintiff''s evidence to warrant the submission of the case to the jury, and (2) whether under all the evidence plaintiff is entitled to recover"
¶3 --and we think a consideration of these propositions is sufficient to dispose of this appeal.
¶4 The allegations in the plaintiff'' s watchman, at times, "motioned them around," and in going around, a worn and well beaten path was made. According to the plaintiff, this path had been in use for a number of years, and it had been custom to go around the blocked crossing during that time. Witness Schott said that he had been using the crossing four or five years, and that it was blocked often during that time; that there was a path there in use by those going around, and that the flagman did nothing to prevent the use of the path. According to witness Hodges, the...
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